Grotius's methods of interpretation, those that are implied by the “exemplary” approach to interpretation, are capable of embracing many sorts of problems. They allow for the destabilization of governments, the use of propaganda, the revoking of a pledged word by means of the clausula, the right of intervention—as much as they are a call to solidarity among states. Mainly these methods provide for the legitimacy of all civil authority, a rather useful idea when a new constitution for a society of new forms of the State is coming into being. Grotius defined sovereignty as that power “whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will.” Thus when the State adopts the constitutional order of the kingly state—and has not only seized for itself a monopoly on violence, but admits no ecclesiastical superauthority (even as to ecclesiastical matters)—it has also achieved legitimacy. De Jure Belli ac Pacis is a compendium of methods by which the treaties and rules of Westphalia can be applied. It does not prescribe the content of those rules.
It is doubtless true that there was “little that guardians of raison d‘état… in the class of Richelieu and Father Joseph could learn from Grotius. Yet their secret archives, diplomatic correspondence, sophisticated treaties… all attest to the competence… and the growing richness of the practice of European international law.”39 Richelieu and Gustavus Adolphus did not seek guidance (though Gustavus admired Grotius greatly). Their successors, however, needed interpretive methods to put into effect the system these leaders had designed and successfully fought for. Through the numerous editions and translations of De Jure Belli ac Pacis the idea of an international society of kingly states was chiefly spread.40 In Grotius, the successors to Richelieu and Gustavus found ways to support the rights of kings to sovereignty, the denial of the supervening authority of the pope, the right to use force to vindicate the Westphalian system, the equal rights of Protestant and Catholic states, the rights of states to navigate the oceans and to conduct trade without the permission of other states, and the validity of agreements made with non-Christian powers. Most significantly for the Westphalian constitution, Grotius gave arguments for the use of war to uphold the general settlement.
The fact must also be recognized that kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations… For liberty to serve the interests of human society through punishments, which originally, as we have said, rested with individuals, now, after the organization of states and courts of law, is in the hands of the highest authorities, not properly speaking, in so far as they rule over others but in so far as they are themselves subject to no one.41
Sovereignty thus implies rather than denies a duty owed to the society of sovereign states. Both Richelieu and Gustavus Adolphus had envisioned a collective security system that would emerge from the Thirty Years' War. Although both had died by the time of the congress, Richelieu's written instructions were followed unaltered. Minutes taken by the papal and Venetian envoys disclose that the French “proposed, for the safeguarding of the peace, a general league between all those concerned in this pacification… with the reciprocal obligation for each and any of them to take up arms against him or those who might infringe the present treaty.”42 Just such obligations are at the center of the Grotian rationale. In the end, the proposal foundered on Oxenstierna's suspicions of France, on the exclusion of the Franco-Spanish conflict, and on French hauteur. Grotius's moment was not complete.
Grotius had written in 1625,
I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed; recourse was had to arms for slight reasons, or for no reason; and when arms were once taken up, all reverence for divine and human law was thrown away; just as if men were thenceforth authorized to commit all crimes without restraint.43
That is to say, strategy had been severed from law by war.
Grotius's reaction to this situation had been to persuade states that they had a common interest served by adherence to the rule of law, and that pursuing this interest would strengthen them as states. The Grotian ethos would serve states by giving them the means to agree upon rules of their own devising, rules that no state acting alone could enforce upon the others. The Westphalian congress was the perfect forum for developing such a consciousness: not only did it bring together the representative actors for a lengthy period of time, the work of the congress demanded consensus reduced to written law (the treaties of Osnabrück and Münster). This consensus was the result of the successful effort at defining a common interest.
Grotius believed that this common interest, which was the basis for law, arose from the inherent sociability of man. Nowadays we might say that human beings only become complete in association with one another, that every associational society has a constitution, and thus the nature of man gives rise to law. Men seek law naturally, as roses turn themselves to the sun, because law permits and enhances their development. Other philosophers, notably Thomas Hobbes, believed that man's inherent nature was for power and that the role of law was to prevent the savage competition to which man's nature would otherwise lead him. Thus men seek law to compensate for their natures, as wolves submit to the pack rather than starve singly. Either approach supported the legitimacy of the individual kingly state, but there were profound differences between these two views regarding the law of the society of such states. There being no sovereign, Hobbes denied that an international law could exist; by contrast, Grotius denied that there had to be a supreme sovereign for there to be a law of the society of kingly states or sovereigns, and he implied that kingly states could only achieve complete legitimacy as part of a society of sovereigns to whom they owed certain duties.
It is often said that Hobbes and later Spinoza extrapolated from the life of the individual human being to that of the State. If the natural condition of men was one of endless war, then the superimposition of an absolute ruler, the sovereign State—Leviathan—did not terminate the state of nature, but merely transferred it to another plane. States are enemies by nature. Agreements to cooperate will be preserved only so long as fear of the consequences of breaking agreements binds the parties. Grotius, by contrast, extrapolated from the lives of persons in a society to that of states in a society. The natural condition of a society is one of potential cooperation—no man is an island sufficient unto himself. Not fear but aspiration binds states to their agreements.
PUFENDORF
Grotius's successors responded to Hobbes and Spinoza by asserting that man's capacity for reason removes him from the anarchic condition of animals and permits him to choose freely to be bound by law. The State, pre-cisely because it is a sovereign, will seek agreements and uphold them generally because it is rational to do so as a way of life for the State, whether or not upholding a particular agreement is to its advantage at a particular moment in time.44 By means of this argument, Hobbes and Samuel von Pufendorf—the latter the most famous of Grotius's immediate followers—are brought into a measure of agreement: “Hobbes' opinion that the law of nature and the law of nations were the same was accepted by Pufendorf. He also accepted the assumption that separate states, having no common political superior, stood in the same relations to each other as men in a state of nature.”45
Pufendorf, moreover, believed that the law of nature provided the only basis for international law, because there was no other source for law such as exists in a society with a sovereign. Indeed he went so far as to deny the key Grotian insight that international law arose from the customs and practices of states, maintaining instead that only those rules that are derived from universal reason were lawful, this being the means by which natural law was apprehended. The law of gravity governed heavenly bodies; the law of states was to be derive
d by much the same rational means.
This is not the place to dwell on the shortcomings of Pufendorf; Leibniz has done this definitively.46 Nor is it necessary to complain about the habits of philosophers that addict them to imagining “states of nature” from which to extrapolate, heedless of the one natural state they know something about, namely the one they are in at the moment, which must be presumed to govern to some degree their speculations about other such environments. Indeed I think it equally likely that both Hobbes and Spinoza found their inspiration for the natural state of man in what they observed in the behavior of kingly states—Hobbes focusing on the domestic scene, Spinoza on the international—and reasoned back from this paradoxical interface of absolute domestic authority and apparent international anarchy to the nature of man, rather than the other way around.
However that may be, the political actors of the time confronted the problem of post-Westphalian law and order—namely, that in the absence of a universal sovereign every kingly state, which Westphalia had made the sole preserver of the liberty, authority, and even the life of the political society largely composed of such states, would attempt to aggrandize itself to the limit of its power. They solved this problem in a somewhat less reified, though no less abstract, way than the philosophers. Like the philosophers, the politicians and diplomats of this era were impressed by the power of reason to discover the principles of nature, and the power of rational systems to exploit those principles. This solution thus had much in common with the mathematics of the Age, but it was not achieved by or expressed in philosophical terms. Rather it was expressed in law, arrived at, as we shall see, by the legal means of a constitutional convention and the achievement of consensus at that congress.
CHAPTER TWENTY
The Treaty of Utrecht
THE WESTPHALIAN PROBLEM—that, absent an absolute and universal sovereign, every kingly state would attempt to aggrandize itself to the limit of its power—found its most threatening expression in the campaigns of Louis XIV that directly challenged the Westphalian settlement. The solution to this Problem was ultimately expressed in a series of eight treaties known as the Peace of Utrecht, which resolved the epochal war composed of Louis's campaigns.
France and Spain had signed the Peace of the Pyrenees in November 1659, ending the one remaining conflict left open by Westphalia, just as Cateau-Cambrésis finally ended the Valois-Habsburg wars four years after Augsburg. Louis XIV married the Spanish infanta in Bayonne and returned to Paris in triumph. France, after some years of turmoil following the death of Louis XIII, was now united.
Once Louis was liberated from internal challenges and the administrative despotism of a sophisticated kingly state was securely in place, he began to make war on the territorial settlements of Westphalia in order to become the arbiter of European affairs. During this period the French state was supreme on the continent. French became the language of diplomacy, French architecture and literature reached their zenith, and the French canons of manners and taste were accepted as the standard throughout Europe.
For seventeen years—from 1667, when he led an army into the Spanish Netherlands, until 1684 when the Truce of Ratisbon confirmed him in all his gains since 1678—Louis's ambition dominated European events. Louis attempted to compel the states of Europe to recognize Ratisbon as an amendment to the territorial dispositions of Westphalia. The design flaw of Westphalia was that it invited this limitless aggrandizement on the part of the prevailing kingly state. In the pursuit of his goal, Louis actually brought into being the coalition and the animating idea that would prove both his undoing and also the undoing of the kingly state itself.
In 1686 this coalition, the League of Augsburg, was formed between the emperor, the Dutch, the western German states, including the upper Rhine provinces, and, in the next year, Savoy. All were alarmed by French intentions and capabilities. Partly in reaction, partly in pursuit of his historic goals, Louis invaded Germany in 1688, burning Heidelberg and reducing the Rhine provinces to ruin. While Louis was thus engaged, William III of Orange landed in England, displaced Louis's ally James II, and took the English crown. Thus by the end of 1689, France faced the United Provinces, England, the Habsburg-led Empire, Spain, Savoy, and the principal German states. The Nine Years' War that ensued exhausted both sides, and in 1697 the Treaty of Ryswick brought a new armistice. Neither side was now able to penetrate the fortress line that divided them in the north. At this point Louis might have been content with his gains; he was certainly acutely aware of the forces arrayed against him. A diplomatic crisis developed, however, that ignited his dynastic ambition, ambition that drove the kingly state. This crisis, provoked by the death of Carlos of Spain in 1700, led to the final campaign of Louis's epochal war, the struggle over Spanish succession, in which Louis attempted to unite the French and Spanish kingdoms in the Bourbon line.
By 1709, however, Louis had withdrawn French forces from Spain and was fighting to preserve France itself. The battle of Malplaquet, near Mons, was a defeat for the French, though allied forces actually lost twice as many men. Now the allied campaign sank into a grinding, brutal, and expensive but indecisive struggle. Louis's efforts toward peace negotiations were consistently rebuffed.
Then in 1710 the Tory party resolved to end British participation in the war. The following year the emperor Joseph died—he had succeeded his father only six years before—and the Archduke Charles unexpectedly became emperor. Enthusiasm for continuing to fight in order to place this figure on the throne of Spain as well was hardly high in Britain. Bolingbroke, the new foreign secretary, argued that if Charles united the Habsburg possessions under a single crown, he would pose the same threat of hegemony that a Bourbon dynasty had created in uniting France and Spain. Thus Bolingbroke recast the purpose of the alliance as one organized to effect a balance of power (rather than to uphold the Treaty of London by recognizing the dynastic claims of the Archduke in opposition to Louis)—that is, replacing the war aims of a society of kingly states with those of a society of territorial states. By this means he provided the basis for a British about-face, as well as for the peace congress to follow.
Britain worked out a secret agreement with France. The British were to receive Gibraltar; Minorca; Nova Scotia, Newfoundland, and Hudson Bay in Canada; and, importantly, the asiento—the monopoly of the slave trade with the Spanish colonies—for twenty years. In return for these commitments, Britain forced the Dutch to agree to a general congress, threatening to make a separate peace if the Dutch refused. Thus the congress opened at Utrecht in January 1712, in a climate of mutual suspicion.
THE CONSTITUTION: THE PEACE OF UTRECHT
The British and French had hoped to conclude proceedings before the next year's military campaign got underway. When this failed to happen, owing to Imperial intransigence, Bolingbroke ordered British troops to withdraw from the alliance, and obligingly provided this news, along with the plan of the allied campaign, to the French. The resulting allied catastrophe at Denain on July 24, 1712, finally persuaded the emperor of the need for a peace.
The Peace of Utrecht consists of eleven separate bilateral treaties.1 That it represented a constitutional convention of the kind that had met at Osnabrück and Münster was well recognized by the parties. In his correspondence during the treaty process, Bolingbroke repeatedly referred to negotiations about the “système général des affaires de l'Europe” and to a “system for a future settlement of Europe.”2 In fact, in the eighth of his “Letters on History,” which deals with Utrecht, he writes that the object of the congress was to achieve a “constitution of Europe.”3
There was a general distinction drawn by the statesmen at the congress between the “private” interests of the states involved in the negotiations and the “public” interests of the society of the states of Europe as a whole.4 Bolingbroke wrote to Torcy, his French counterpart, that “[t]he queen's ministers are far from wishing that the king should act contrary to his word and his honour; but Sir… something mus
t be done for the sake of the peace and the interest of one individual must yield to the general interest of Europe.”5
The ability to put forward a state's arguments in terms of a society of territorial states—a society, that is, characterized by a concern for the territorial stability of the whole—bedeviled and eluded some of the actors at Utrecht. The emperor, for example, “showed little aptitude for putting his case persuasively, neglecting to couch it in the idiom of international consensus…. Charles was quite literally unable to communicate on the international level [and] found himself increasingly isolated.”6 The language of this new consensus was reflected in four striking contrasts with the idiom it superseded.
First, the language of “interests” replaced that of “rights.” “Rights” were something that kings might assert against each other; “interests” were something that states might have in common. Whereas the Westphalian monarchs had been concerned to establish the rights of the kingly states—the legal status of dynastic descent; the absolute right of the king over his subjects, including especially control over the religious liberties of the persons within his realm; and the perfect sovereignty of each kingly state unfettered by any external authority—the society of territorial states was concerned instead with the mutual relationships among states, specifically with maintaining a balance of power within that society itself. At one point Bolingbroke observed explicitly that “enough has been said concerning right, which was in truth little regarded by any of the parties concerned… in the whole course of the proceedings. Particular interests were alone regarded.”7
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